A Sentencing Win in a Criminal Immigration Case at the Ninth Circuit

By Dan Cadman on September 17, 2015

There is always something interesting and "newsy" to be found in the federal courts where immigration is concerned, especially if it involves aliens seeking to evade the consequences of removal.

Deportation, it seems, is a particularly fertile ground for plowing in appellate courts, probably much to the delight of the private bar. And because immigration law is exceedingly nuanced and complex there is always some new technical argument to be put forward by plaintiffs and their lawyers.

Here is the story of one presumably resolved case that contains a few nuggets worthy of mention. I say "presumably" because the decision was handed down by the Ninth Circuit Court of Appeals and the alien appealing the case has the right to petition the Supreme Court to hear the case, although for reasons to be seen, there's every reason to doubt that the petition would be granted.

In this case, the Ninth Circuit refused to remand the case of Guadalupe Rosales-Gonzales back to district court in Southern California after the presiding judge there declined to agree to fast-track sentencing for an alien convicted of reentry after removal (deportation) as part of a plea deal with the government. Fast-track sentencing basically allows a judge to depart from U.S. sentencing guidelines by shortening the prescribed sentence. The Ninth Circuit found that fast-track departures from sentencing guidelines were purely discretionary and therefore that the presiding district court judge did not err when refusing to concur.

So here we have that rare bird: a win for the government in the most liberal federal circuit in the land. But it's a curious win because the fast-track recommendation/request to the judge was agreed to by the prosecutors not once but twice as a part of the plea agreement submitted to him — first recommending a sentence of nine months and, when the judge rejected that out of hand, then coming back to recommend a 15-month sentence, which was also rejected.

Why? According to the Ninth Circuit's opinion, this was the 35th time Rosales-Gonzales had been deported and the first fast-track recommendation didn't even amount to the time the man had served in federal prison on his last go-round for the same offense (14 months). What could the prosecutors have been thinking of?

As an interesting side note, even when ruling for the government the Ninth Circuit cannot help but let its political correctness shine. Throughout the opinion, the court refers to the case as a conviction "for being a removed immigrant in the United States" instead of just saying "previously deported alien".